- (1.) This is Civil Special Appeal against the order and judgment dated 29.07.2005, vide which, the writ petition of the petitioner was dismissed by learned Single Judge holding that he was not entitled to the payment of arrears of salary for the period he has not worked on the promotional post.
(2.) The order and judgment has been impugned on the ground that although the petitioner/appellant had specifically prayed vide clause (ii) of the relief clause that a positive direction/mandate be issued to the respondents to provide entire monetary benefits to the petitioner with effect from a date on which he was promoted but Hon'ble Single Judge has decided the relief sought by the petitioner without taking the judgments cited by the petitioner into consideration. Further, vital questions raised in the writ petition have been omitted. Secondly, although the appellant was granted promotion as aforesaid upto the post of C.T.O. (Senior Scale) in compliance with the directions given by the High Court vide judgment dated 11.10.1993 but he was deprived of the consequential benefit of getting difference of salary and other emoluments. The same has wrongly and illegally been denied to him by giving weightage to the contentions raised on behalf of the respondents on the basis of sub-rule (11-A) of Rule 18 of the Rajasthan Commercial Taxes Service Rules, 1971 (hereinafter referred to as "the Rules of 1971"). In fact, this rule is not at all applicable in the facts and circumstances of the present case. It was further argued by learned counsel for the appellant that subrule (11-A) of Rule 18 has no application which applies only in a situation where there is non-determination of vacancies. So far as the instant case is concerned, it cannot be said that there was non-determination of vacancies during the relevant years and, therefore, in view of the said judgment it can very well be said that sub-rule (11-A) of Rule 18 has been erroneously and illegally applied and the appellant has been at the same time illegally denied the difference of payment of arrears of salary and other emoluments. It was further contended that sub-rule (11-A) of Rule 18 of the Rules of 1971 is wholly arbitrary, unreasonable and against the basic principles of law and also violative of Article 14 and hit by Article 300-A of the Constitution of India. Learned counsel for the appellant further submitted that all the seniors to the appellant were promoted on the post of Deputy Commissioner and were assigned the quota of year 1993-94. At the same time, it was also submitted that Shri N.S.Bordia, who was admittedly junior to the appellant, was also promoted vide order dated 04.06.1993 against the vacancies of the year 1993-94. The appellant only was deprived from his fundamental right of getting promotion on the post of Deputy Commissioner in the aforesaid manner which was wholly illegal and contrary to the basic principles of law.
(3.) Reliance was placed on the judgment rendered by Apex Court in the case of Mohd. Ahmed Vs. Nizam Sugar Factory & Ors., 2005 AIR(SCW) 3364 as well as the judgment of Punjab & Haryana High Court rendered in the case of Shri Charan Dass Chadha Vs. The State of Punjab & Anr.,1980 3 SLR 702 and the judgment of Apex Court rendered in the case of State of Kerala & Ors. Vs. E.K.Bhaskaran Pillai, 2007 AIR(SCW) 4766 to contend that any condition imposed to the effect that an employee is not entitled to the pay and allowances as a result of retrospective promotion for the period he had not worked on the said post, was wrong and illegal.;